FOIA Facts: FOIA Fees

As many FOIA requesters know,
agencies collect fees on many requests. These fees can be for duplication,
searches, processing or any combination of the three. Duplication fees
average between a dime to twenty cents per page. Search and duplication
costs, depending on the grade level of the federal employee doing the work
are $28-50 per hour. Only the very rare agency collects enough fees to
even make a dent into the cost of running the agency’s FOIA program. The
fee schedules of all agencies are published in the
Federal Register, and the amount of
money collected from FOIA requests are listed in the agencies annual FOIA
report to Congress.

Even more important to the
agencies than collecting fees, however, are how they use estimated fees to
their advantage. Agencies, always looking for ways to trim FOIA backlogs
and workloads, use estimated fees to shock requesters into dropping or
narrowing their FOIA requests. For instance, assume a request involves
5,000 pages of documents, and the duplication fees are fifteen cents per
page. The estimated duplication fees will be $750. The agency will send
out a letter explaining this to the requester, and ask them to make a
promise to pay the fees. Many small business and/or individual requester’s
will get a case of sticker shock and in many cases will either cancel or
significantly narrow the request.

If agencies are able to charge search and processing fees, they will add
that to the estimated fees. I’ve recently heard about an agency telling a
requester that the estimated fees for his request were $1,000,000! For
agencies, the beauty of estimated search and processing fees are that they
are not required to actually show the math behind their estimates. So
agencies will always provide the requester with the highest estimated fees
they can conceive of in the hopes that the requester will either narrow
his or her request, or just go away.

When receiving a fee estimate, FOIA requesters may do a number of things
to verify that it is accurate. Initially, I ask that it be put into
writing. Agencies like to call and notify requesters of the fee. However,
it isn’t always clear who the agency personnel making the call is, and if
they have the authority to make this fee estimate decision.

I also ask how the fee was determined. On many occasions, after being
provided with the rationale behind the fee estimate, I’ve determined that
the fee estimate is the upper end of the spectrum and the actual fee my
client will be obligated to pay will be much less than the agency’s
estimate.

I also ask many questions about how to go about narrowing the request. It
is very rare occasion that my client will want every document in a file.
Many agencies easily break down the documents into separate categories.
When I know the categories and my client’s interests, it is fairly easy to
reduce the scope of the request, making everyone happy in return.

Thus, while agencies use estimated fees to their advantage, a FOIA
requester need not accept the agencies estimate without question. The FOIA
process involves the requester as much as the agency, and the requester
should not be afraid to question the agencies estimates of the fees that
it will take to process the FOIA request.